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Equity in Marriage : A Case for Prenups in India

Ravi Ambardar: India is a young country with over 50% of its population under the age of 30 and 1/3 of its population living in urban areas. This interplay between the younger population and rapid urbanisation challenges traditional family structures, and norms of man woman relationship including the institution of marriage. And it is only natural that innovative frameworks like prenuptial and co-habitation agreements gain prominence to accommodate these changing dynamics. To understand and discuss the legal and sociological implications of prenups as they are called, we have with us Alkanshree Dahar, Founder and Managing Partner of Law Offices of India and a prominent civil rights activist.

Thank you Alkanshree for joining us today. In a recent interview to a well-known television channel, you made a compelling case for legalizing prenuptial agreements. Before we delve deeper into the issues involved, can you tell us what is a prenup agreement? How does it differ from a postnup agreement? And how do both of them differ from a co habitation agreement.

Alkanshree Dahar: Agreement between spouses signed prior to marriage as to how the assets, properties etc are to be divided in case of death, separation or dissolution of marriage are called prenups agreements, if they are signed after the marriage takes place they are called post nuptial agreements. And cohabitation agreements differ from the pre or post nups agreements in the sense that they are agreements between two unmarried persons who have agreed to stay together or have a live in relationship.

Ravi Ambardar: what are the benefits of having a prenup agreement and how does it help in case of divorce etc.?

Alkanshree Dahar: By  clearing pre defining how the assets/financial matters are to be settled in case of death or divorce, each spouse would know where he or she stands, adding clarity and can reduce acrimony, bitterness, uncertainty and  speed up the court proceedings and help reduce the emotional trauma that results from protracted legal battles.

Ravi Ambardar: what is the current legal status of prenups in India?

Alkanshree Dahar : There is no specific law governing prenups in India. And so in that sense they are not legally enforceable. prenups agreements come under the provisions of section 28 of the Contract Act, which states that agreements under the contract act cannot override the provisions of other laws like on alimony, maintenance or custody of children, so in that respect they are not legally enforceable. But, in a spate of judgments courts have relied upon the prenup agreements to determine the purpose and the intent of the parties involved regarding the division of assets/properties in case of death or divorce or separation. Allahabad High Court in case of Bhagwati saran Singh vs Parmeshwari Nandan Singh held that marriage apart from being a holy concept is also a civil contract. A Family Court in Mumbai held that a prenup can be considered to gain insights into the intentions of the parties involved. The court noted that section 14 of the Family Court empowers the court to consider documents which in the opinion of the court assists it to deal with a dispute. And also Delhi High Court in a recent judgment suggested a prenup agreement should be made mandatory.: So, for some time now prenups have value as judiciary is more open to taking into account the prenups to determine the intent of the spouses. And also under the special marriage act prenups if they are included in the documentation have legal value and can be acceptable.

Ravi Ambardar: There is a popular notion that prenups are only for the super rich especially business owners who want to protect their wealth and assets and not of much relevance to regular people.

Alkanshree Dahar: That is not quite right. Although super rich including business owners have greater stakes in ring-fencing their wealth and companies  which may have been built over generations but the same logic applies to

Others – also with an increasing no of working women and both men and women marrying later than what was the norm earlier, either of the partners may bring some savings, investments, property, or even inheritance into marriage which they may want to ring-fence.

Ravi Ambardar: Critics of prenups would argue that it sounds like one is planning for the failure of marriage at the inception itself and in a largely conservative society where marriage is considered sacrosanct, it would meet disapproval; disapproval may be an understatement, it could meet with stiff resistance.

Alkanshree Dahar: one does take cover for a critical illness or even death and it is no one’s case that we are planning for the death or a critical illness to hit us just because we have taken a cover for it. And as far as resistance is concerned there was tremendous resistance to Hindu Code Bill. Hindu Marriage Act- but today they are seen as path breaking legislations for empowerment of women. The general public needs to be educated about its advantages and here the opinion makers have a role to play.

Ravi Ambardar: We have talked about the usefulness of prenups on death or dissolution of marriage. Can we widen its scope to be of use during the subsistence of marriage so that it finds greater acceptability.

 

Alkanshree Dahar: A prior agreement on how the spouses undertake to behave, interact and conduct themselves in a marriage would be stretching the things too far although in USA some prominent couples have entered into prenups containing provisions like how much private time each would have or how many vacations they should have each year. However having said that, pre defining arrangements on issues like how the children or parents should be provided for, and even on how much each should contribute towards, let us say retirement funds, can bring transparency and clarity and remove potential areas of discord and contribute to stability in marriage.

Ravi Ambardar: How many countries in the west and other parts of the world have  made prenups legal and what has been their experience:, has it increased divorce rates and litigation.

Alkanshree Dahar: In USA prenups are valid under Uniform Premarital Agreement Act 1983 which has been adopted by various states there. It has found general acceptance with 40% among the younger population having signed prenups. in UK too Courts have started to consider them to understand the intention of parties to marriage.

China has made it enforceable under Article 19 of the 2001 Marriage Act and so is it in Japan under Article 755 of the Japanese Civil Code. Even in our own country prenups are valid in Goa under the Portuguese Civil Code and under Islamic law there is the concept of Mehar where the husband is required to pay a predetermined sum to wife – so some element of a prenup is there in India also.

And as regards divorce rates, there is no evidence to suggest that prenups are the cause of the increase in divorce rates while it is generally accepted that prenups lead to decrease in litigation.

 

Ravi Ambardar: For the benefit of those who want to go in for a prenup what should be kept in mind while making the prenups to avoid ambiguity and disputes about the terms and conditions later on.

Alkanshree  Dahar: First of all full and complete disclosure of their finances should be made. The agreement should not be one sided and should not have any provision for overriding any law in force. It is preferable to consult a lawyer because the courts also examine whether proper legal counsel was available to both the spouses.

Ravi Ambardar: From our conversation today it is clear that prenup is a complex and sensitive issue which has social, cultural, legal and religious ramifications. It is essential to have a full public discourse and consultation involving policy and opinion makers, law makers, community leaders and above all general public to frame a law to govern prenups which is  simple, transparent and equitable and ensures that the  partner with a stronger bargaining power cannot ride roughshod over the rights of the other who may be in a vulnerable position.And as we come to the end of this very interesting conversation can you give us one major takeaway from today discussion.

Alkanshree Dahar: Prenup is a concept whose time has come and we cannot solve the problems of today through the prism of yesteryears conventions.

Ravi Ambardar: On this wise counsel we conclude this delightful conversation. I thank you once again.

Alkanshree Dahar: Thank you.